Excerpt

The following ran in the June 28, 2012, edition of the Plano Star newspaper. Law Professor Lackland Bloom provided expertise for this story.

July 3, 2012

By Bill Conrad

In a move that shocked many people due to the right-leaning nature of the U.S. Supreme Court, the core of President Barack Obama's signature law was upheld via a 5-4 decision handed down Thursday morning.

The controversial individual mandate, which required Americans to purchase and maintain health insurance, will not be applicable under the commerce clause, which allows Congress to regulate commerce. However, the majority of the court ruled that requiring Americans to purchase insurance or face a financial penalty was constitutional and will be allowed.

The majority decision, authored by Chief Justice John Roberts, stated this penalty could be enforced under Congress' power to levy taxes. Roberts, however, did join the four conservative-leaning justices in a 5-4 vote that struck down the law's implementation under the commerce clause....

Lackland Bloom, a constitutional law professor at SMU's Dedman School of Law, said in all of his discussions with colleagues leading up to the decision, he was not aware of anyone who predicted the court would act the way it did Thursday.

"This was really an extraordinary case," Bloom said. "On the one hand there were some really solid constitutional arguments that Congress went too far here, but on the other hand striking down a piece of legislation of this magnitude is a pretty significant deal.

"It just looks like Roberts kind of decided that No. 1, Roberts said we shouldn't strike this down because that is too big of an order for the court, but on the other hand I think we should rein Congress in under the commerce clause and given that they could have done this under the taxing power, lets just treat this as if they did," he added.

Bloom noted there was no real controversy on whether Congress had the power to implement the health care law using its powers to levy taxes, but said both the president and Democrats in Congress avoided using that strategy since it would be viewed as a hugely unpopular tax increase. Instead, Congress called the payments for non-compliance a penalty, not a tax, a move which triggered the constitutional arguments under the commerce clause.

"My guess was that they were going to strike down the mandate on the commerce clause, as they did, and they would just kick it back to Congress and say 'if you want to raise taxes, you can fund this thing,'" Bloom said. "Of course with Republican control of the house, that couldn't have happened. And it probably wouldn't have happened when there was Democratic control of the House, which is why they so assiduously avoided talking about it under the taxing clause."

Even with the individual mandate ruled constitutional and the health care law still alive, Bloom believes the most important part of the ruling is the limitation on congressional powers dealing with the commerce clause.

"The ruling on the commerce clause gave the plaintiffs everything they wanted," he said. "They definitively rejected the notion that Congress could regulate inactivity under the commerce clause. That is not unimportant. Obviously everyone is focused on the specifics of the case and whether the health care act was constitutional or unconstitutional, but the bigger question was whether Congress had unlimited power under the commerce clause to regulate virtually anything."

Bloom said if the commerce clause argument wasn't rejected, the government would have had the power to order people to purchase anything, be it broccoli or a specific brand of automobile.

He said another important aspect of the case is the decision to prevent the federal government from withholding all Medicaid funds from states which fail to comply with the requirements of the expansion of the Medicaid program, an expansion which he described as being "extraordinarily expensive" and will cost each state a "huge amount of money."

"Basically the court said you can't do that because that is too coercive," Bloom said. "They said if the states decline to participate in the expansion, you can deprive them of the funds that would be given to them as part of the expansion, but you can't take away everything else."...